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Keys to Winning with Use of Force: A Four-Step Plan
Written by Randy Means
Recent images of police officers using questionable force have rekindled the periodic fires of concern over police use of force and credibility. Clamor over these incidents encourages preliminary statements from agency heads that often initially and sincerely support the officers’ behavior. Chiefs and sheriffs risk their standing with the community when (as has repeatedly happened) uncontrovertibly video and audio of the force incident is then “discovered” and aired on local news or the Internet.
Although improved media policy and improved internal review of force may decrease the number of “revised statements” issued by law enforcement leaders, those measures tend to treat the symptoms rather than the causes of the problem. The cure for use-of-force “problems” lies in the professional and reasonable application of force by officers in the field.
No other enforcement task is more difficult, more demanding personally and professionally, than to use force only at the right time, in the right way, and for the right reason. This article is the first of a five-part series designed to help agency leaders, supervisors, and trainers visualize clearly and holistically the component parts of an effective force management system.
Traditional initiatives involving policy, training, supervision and discipline are all pieces of the use-of-force puzzle. Unfortunately, none of those efforts will fully counteract the almost certain negative effects of hiring the wrong person to be a police officer.
The time is now for many law enforcement agencies to take a very long and hard look at their hiring practices. Character, personality types, and human-relations issues should be the center and anchor of our employment criteria. It may be that our hiring processes are too demanding in certain regards and not demanding enough in others.
A future edition of this column will focus on improving hiring processes. This article, though, focuses on the here and now. Our current work force will, for the most part, be our work force for the near term. The question addressed here is: What can we do to assure that force gets used only at the right times, for the right reasons, and in the right way?
In Graham v. Conner, 490 U.S. 386 (1989), the landmark use-of-force case of the United States Supreme Court, the Court had this to say: “…officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving…”
This statement appropriately highlights the criticality of officer preparedness. Agencies must prepare officers across multiple disciplines to provide them with the core competencies to use force appropriately under these conditions. Employers must be willing to require adherence to professional standards by imposing true organizational discipline.
Efforts must go well beyond mere preparation for the actual force involvement. This five-part series of articles identifies and explains four keys to navigating this complex interplay of law, human nature, interpersonal communication, physical ability, and specific weapon proficiencies.
Key # 1: Interpersonal Skill and Emotional Management
The first key focuses on the role of interpersonal communication skill and emotional management in reducing the need for force and/or the amount of force required. In some circumstances, the on-scene officer will not have the opportunity to use verbal de-escalation techniques. The officer’s correct course will sometimes necessarily involve direct physical force to prevent harm to the officer, others, or to prevent the subject’s escape.
In other situations, officers will encounter people who will resist all best communicative efforts to resolve the matter without force. Even in those cases where tactical communication fails and force is used, the genuine pre-force attempt to manage behavior with verbal techniques puts the subsequent use of force in the best possible light.
Interpersonal communication skills often do succeed in de-escalating volatile situations and frequently allow officers to gain voluntary compliance. When problems are solved without the need for force, everybody wins. Every officer is going to use some kind of verbal techniques in dealing with people. If an officer tends to use antagonistic, disrespectful or intimidating techniques, the agency then must deal with the fallout from officer-agitated incidents. There are things that can be done to avoid those problems, and the next article in this column will address those measures.
Key #2: Assuring the Legal Validity of Core Transactions
When there is a “problem” with a use-of-force involvement, it is rare that the amount of force used by the officer is the cause of the problem. The far more typical problem is some legal flaw in the transaction itself—the thing the officer is doing in the first place. It turns out that the cure for most use-of-force problems is found in proper training and supervision in matters of arrest and detention and search and seizure.
One might ask: How much force is reasonable in an absolutely illegal police action? Normally, the answer would be “none.” If an officer makes a “bad” (illegal) stop and the subject resists physically, how much force is reasonable to overcome the resistance? The same question may be asked in respect to illegal arrests, illegal searches, and illegal entries into private premises.
If we don’t get the core transaction right, we’re at risk of losing every time force is used. The second article in this column will discuss how we can and should do a better job in assuring that officers know and follow the law in general—not just the law of use of force.
Key #3: Maintaining Proportionality and Managing Force Escalations
To be lawful, an officer’s use of force must be “objectively reasonable.” But what does that mean? How exactly does it influence technique or weapon selection during a use-of-force transaction? What role does agency policy have in setting “reasonableness” or “necessary” force standards for its officers? This key focuses on situations where the use of police authority is authorized, and it is the degree and type of force that is at issue.
Use-of-force policy and training models should deal with the increasing complexity of weapon systems in the field. Hands, sticks, a gun, and maybe a spray or K9 were generally the maximum number of weapon systems immediately available to a field officer in the recent past. Many officers now regularly carry four weapons on their duty belt and three or more in their vehicle.
Use-of-force policy should resist the simplistic nature of giving pat guidance, i.e. “If a subject does X, then the officer shall do Y.” Depending on the totality of force factors, the “approved” force may be “unreasonably” excessive or dangerously insufficient. Policy that is rich with multiple, well-described scenarios that consider the full range of “objectively reasonable” officer responses are a viable alternative to sterile models that do not represent the dynamic nature of use-of-force decision making. An article on this key will provide officer preparation advice on 14 “force factors” present in the use-of-force calculus.
Key #4: Avoiding Peripheral Poisonings
Force events do not occur in a vacuum. A narrow concentration on just getting the use of force right is not the only important issue in protecting the officer and agency from a variety of negative outcomes. Correct use-of-force cases can be poisoned by pre- or post-force officer behaviors or reputations and/or behavior during a force incident that has nothing to do with the force itself.
Laughing and joking about hurting and/or killing people—as if it would be great fun—can come back on officers and agencies, whether it occurs before or after a force incident. Cavalier boasting or posturing about past, present or future uses of force is almost always known to first-line supervisors and managers. Name-calling and/or verbal abuse during a force transaction can alter witness perceptions negatively.
Officer education and effective corrective measures are a leader’s first step to a case-poisoning antidote. Obviously, the use of racial, ethnic or gender slurs and jokes can poison a use-of-force case that won’t happen until months or years later. On the post-incident front, agency policy and practice toward assuring complete and accurate use-of-force documentation is critical whether or not there is visible injury or formal complaint. The final article in this series will provide a detailed discussion of how to avoid “peripheral poisonings,” which might unnecessarily burden an otherwise proper use of force.
Randy Means is a partner in the Charlotte, NC law firm of Thomas and Means, LLP, and specializes entirely in police operations and administration. He formerly served as head of legal training for North Carolina’s state law enforcement training center and then police attorney for the city of Charlotte. He can be reached at firstname.lastname@example.org. Greg Seidel is a patrol commander in the Petersburg, VA Police Bureau. During his 24-year career, he has led his agency’s tactical team, investigation division, Office of Internal Affairs and Training Bureau. He is certified instructor in firearms, chemical and less-lethal weapons, and fitness. He can be reached at email@example.com.
Published in Law and Order, Oct 2008
Rating : 10.0
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